Citation Nr: 1307749	
Decision Date: 03/08/13    Archive Date: 03/11/13

DOCKET NO.  09-14 395	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to service connection for hypertension.

2.  Whether new and material evidence has been received to reopen a claim for entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. P. Simpson, Counsel

INTRODUCTION

The Veteran served on active duty from August 1975 to August 1978.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

The RO has adjudicated the claim for service connection for PTSD on the merits.  The evidence shows that entitlement to service connection for PTSD was denied in a February 2002 rating decision, which denial was confirmed in January 2003.  The Veteran submitted a notice of disagreement regarding the denial of service connection for PTSD, and the RO issued a statement of the case in November 2003.  However, the Veteran then submitted a VA Form 21-4138, which was received in December 2003, wherein he stated he wanted to terminate his claim for entitlement to service connection for PTSD.  See id.  

Thus, when the Veteran submitted the October 2007 informal claim for service connection for PTSD, the RO should have construed it as an application to reopen the previously-denied claim.  Regardless of the RO's adjudicating the claim on the merits, the Board is nevertheless required to address the issue of reopening to determine whether new and material evidence has been submitted.  See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial); Wakeford v. Brown, 8 Vet. App. 237 (1995).  Thus, the issue has been characterized as a previously-denied claim.

The Board has reviewed the Veteran's claims file and the record maintained in the Virtual VA paperless claims processing system. 

The reopened claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  Hypertension was not shown in service or within the one-year presumption period, and there is no competent evidence of a nexus between the post service hypertension and service.  

2.  A claim for service connection for PTSD was denied by a January 2003 rating decision.  The Veteran appealed the rating decision, but then withdrew the claim following the issuance of a statement of the case in November 2003.  The January 2003 rating decision is final.

3.  The evidence submitted since the January 2003 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD.


CONCLUSIONS OF LAW

1.  Hypertension was not incurred in or aggravated by the Veteran's active duty service and may not be presumed to have been incurred in or aggravated by such service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 1153 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012).

2.  New and material evidence has been submitted to reopen the claim of entitlement to service connection for PTSD, and the claim is reopened.  38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.156 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: (1) Veteran status; (2) existence of a disability; (3) a connection between a Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits.

Before addressing whether these duties have been met, the Board notes that it will not discuss whether VA has met the duties to notify and assist in connection with the reopened claim of entitlement to service connection for PTSD for two reasons.  One, the reopening of the claim is a favorable action, and it means the Veteran was successful in his application to reopen the previously-denied claim.  Thus, any failure on the part of VA to inform the Veteran of the reasons for the prior denial is moot.  Two, the purpose of the remand will be meet the duties to notify and assist.

Regarding the claim of entitlement to service connection for hypertension, the Board finds that VA has satisfied its duty to notify under the VCAA.  Specifically, a January 2008 letter, sent prior to the initial September 2008 rating decision, advised the Veteran of the evidence and information necessary to substantiate his claim for service connection, as well as his and VA's respective responsibilities in obtaining such evidence and information.  Additionally, such letter advised him of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  

In reading through the Veteran's and his representative's statements, the Board finds that the Veteran has expressed that his claim for service connection for hypertension is based solely upon direct service connection and as a claim of secondary service connection.  For example, in reading through October 2007 informal claim, the October 2008 notice of disagreement, the April 2009 substantive appeal, and the January 2013 appellate brief presentation, the Veteran and his representative have made allegations that hypertension was due to service and are silent for allegations that it was due to a service-connected disability.  Thus, the Board has considered direct service connection only.

Relevant to the duty to assist, VA has obtained VA treatment records, Social Security Administration (SSA) records and private medical records identified by the Veteran.  The Board is remanding the reopened claim of entitlement to service connection for an acquired psychiatric disorder and will be seeking VA medical records from 1994, as the Veteran reported he received possible treatment for dependency issues.  The Board finds it can still decide the issue of entitlement to service connection for hypertension for two reasons.  One, in 1996 VA treatment records, it shows the Veteran denied a history of any cardiovascular problems, which would include hypertension.  Thus, if the Veteran's medical history was negative for hypertension in 1996, it would mean it was negative for hypertension in 1994.  Two, in 1992, which is more than 10 years following service discharge, the Veteran had blood pressure readings that would not fall into the definition of hypertension (and the evidence did not show he was on medication).  Thus, the Board finds that the 1994 VA treatment records, assuming they exist, would not assist the Veteran in a finding that hypertension was due to service.

VA has not provided the Veteran with a VA examination or medical opinion in connection with this claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2) (West 2002); Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003); 38 C.F.R. § 3.159(c)(4)(i) (2012).  

As to evidence of a current disability or persistent or recurrent symptoms of a disability, there is competent evidence that the Veteran has been diagnosed with hypertension.  Thus, there is evidence of a current disability.  However, the Board finds that the evidence shows that hypertension was not demonstrated in service or manifested to a compensable degree within one year following service discharge.  See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012) (Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days.).  For example, the August 1975 Report of Medical Examination shows the Veteran's blood pressure was 138/68.  Clinical evaluations of the heart and vascular system were normal.  The Veteran denied a history of high or low blood pressure at that time.  In a medical questionnaire he completed in July 1977, the Veteran circled "no" to ever having heart trouble or abnormal blood pressure.  An April 1978 Report of Medical Examination shows that the Veteran's blood pressure was 124/76, and clinical evaluations of the heart and vascular system were normal.  There are no medical records dated within one year following service discharge, but a July 1980 VA examination report shows that five blood pressure readings were taken on that day while sitting, recumbent, standing, sitting after exercise, and two minutes after exercise, which readings were 112/68, 122/72, 122/74, 122/80 and 122/76, respectively.  None of the inservice or 1980 blood pressure readings meet the criteria for a finding of hypertension.  Additionally, the Veteran has not made an allegation that he had elevated blood pressure readings during service or within the one-year post service period.  

Accordingly, the Board finds there is no evidence establishing that an event, injury, or disease occurred in service or establishing hypertension manifesting during an applicable presumptive period is not met and a VA examination or medical opinion was not required.  

The Board concludes that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose in connection with this claim.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim.

II.  Hypertension

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131; 38 C.F.R § 3.303(a).  Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury.  38 U.S.C.A. § 1112; 38 C.F.R. § 3.304.  

Alternatively, service connection for hypertension may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology.

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, including hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease may be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309.

Under VA rating criteria, the term "hypertension" means that the diastolic blood pressure is predominantly 90mm or greater, and 'isolated systolic hypertension' means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm.  Hypertension or isolated systolic hypertension must be confirmed by ratings two or more times on at least three different days.  38 C.F.R. § 4.104, Diagnosis Code 7101, Note (1).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 

The Veteran's allegations regarding why he feels hypertension had its onset in service are unclear.  In the submissions to VA, the Veteran has stated that he believes hypertension is due to service.  However, in reviewing all the evidence of record, the Board finds the preponderance of the evidence is against the claim for service connection for hypertension.  The reasons follow.

As discussed above, the service treatment records show the Veteran's blood pressure readings during service do not support a finding that the Veteran had hypertension in service, see 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), and the Veteran specifically denied having any abnormal blood pressure readings in July 1977, which was approximately two years into his period of service and one year prior to his service discharge.  When the Veteran underwent a VA examination more than one year following service discharge in July 1980, none of the five blood pressure readings met the definition of hypertension.  Id.  He was hospitalized at a VA facility in 1992 for drug dependence and had a blood pressure reading of 150/100.  The examiner noted the elevated blood pressure and that during the hospitalization, the Veteran's blood pressure "did decrease and was [within normal limits] on a no[-]salt diet after withdrawal."  However, there was no diagnosis of hypertension in the hospitalization summary report, and the hospitalization report did not indicate the Veteran had been put on medication for blood pressure.  Instead, the examiner specifically noted that his blood pressure was within normal limits based upon diet.  The failure to diagnose hypertension at that time is evidence against a finding that the Veteran had hypertension.  Regardless, even if the Board accepted that the Veteran had hypertension at that time, it was still more than 10 years following service discharge.  

VA treatment records in 1996 show blood pressure readings of 110/75 and 115/82 without a diagnosis of hypertension.  In a June 1996 record, the examiner noted there was, "No known history of cardiovascular problems."  Based on the evidence in the claims file, the Veteran's blood pressure readings began meeting the criteria for hypertension in approximately 2000 and a December 2000 VA treatment record shows a diagnosis of hypertension, which is more than 20 years following service discharge.  The Board finds that the evidence in the claims file is against a finding that hypertension was incurred in service or manifested to a compensable degree within one year following service discharge.

Again, the Veteran has alleged that hypertension was incurred in service, but his allegations have been nonspecific.  In other words, the Board does not know the theory upon which the Veteran believes hypertension is due to service.  For example, he has not alleged having elevated blood pressure readings, and in July 1977, he specifically denied a medical history of abnormal blood pressure.  The Veteran has not stated when hypertension was first diagnosed.  Thus, his lay statements are insufficient to establish a nexus between the post service hypertension and service.  In other words, there is no competent evidence of a nexus between the Veteran's diagnosis of hypertension and service.  For these reasons, the Board concludes the preponderance of the evidence is against a finding that hypertension is related to the Veteran's service.

In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine.  However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for hypertension.  As such, that doctrine is not applicable in the instant appeal, and his claim must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra.

III.  PTSD

Prior final rating decisions may not be reopened absent the submission of new and material evidence warranting revision of the previous decision.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  "New" evidence means evidence "not previously submitted to agency decisionmakers."  38 C.F.R. § 3.156(a).  "Material" evidence means "evidence that, by itself or when considered with previous evidence of record, related to an unestablished fact necessary to substantiate the claim."  Id.  

In order to be "new and material" evidence, the evidence must not be cumulative or redundant, and "must raise a reasonable possibility of substantiating the claim."  Id.  In this regard, in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raise a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening.  Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim.  When determining whether the claim should be reopened, the credibility of the newly submitted evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1991).

The Court has clarified that, with respect to the issue of materiality, the newly-presented evidence need not be probative of all the elements required to award the claim as in this case dealing with a claim for service connection.  Evans v. Brown, 9 Vet. App. 273 (1996).  However, it is the specified bases for the final disallowance that must be considered in determining whether the newly-submitted evidence is probative.  Such evidence must tend to prove the merits of the claim as to each essential element that was a specified basis for that last final disallowance of the claim.  

If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits.  38 U.S.C.A. § 5108.  "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find."  Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).

The Board is neither required nor permitted to analyze the merits of a previously-disallowed claim if new and material evidence has not been submitted.  Butler v. Brown, 9 Vet. App. 167, 171 (1996).  No other standard than that articulated in the regulation applies to the determination whether evidence is new and material.  See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

A claim for service connection for PTSD was denied by a rating decision in February 2002.  The Veteran submitted additional evidence within one year of the February 2002 rating decision, and the RO issued another rating decision in January 2003, wherein it continued to deny the claim.  While the Veteran submitted a timely notice of disagreement in March 2003, and a statement of the case was issued in November 2003, the Veteran then withdrew his claim in December 2003.  Thus, the January 2003 rating decision became final.  That rating decision denied the claim because it determined that the Veteran's stressors were not qualifying for the diagnosis of PTSD.  The RO found as fact that the Veteran had not provided evidence of verifiable stressors.  

Since the January 2003 rating decision, the Veteran has submitted more detailed information as to stressors he claims caused his PTSD, one of which he provided a specific date (month, day and year).  Therefore, the Board finds that the evidence submitted since the January 2003 rating decision is new and relates to an unestablished fact necessary to substantiate the claim for service connection for PTSD, is neither cumulative nor redundant of the evidence of record in January 2003, and otherwise raises a reasonable possibility of substantiating the claim.  Thus, the issue is reopened.


ORDER

Entitlement to service connection for hypertension is denied.

New and material evidence has been submitted to reopen the claim for service connection for PTSD, and the claim is reopened.  The appeal is granted to this extent.

REMAND

At the time of the January 2003 rating decision, the Veteran had been diagnosed with depressive disorder.  See, e.g., February 2001, April 2001, September 2002 and December 2002 VA treatment records.  However, in the February 2002 and January 2003 rating decisions, the RO denied only the psychiatric diagnosis of PTSD.  Thus, the Board finds as fact that the claim for service connection for depressive disorder or major depressive disorder was not adjudicated at that time.  Ingram v. Nicholson, 21 Vet. App. 232 (2007).  The Board has characterized the claim for service connection for an acquired psychiatric disorder, to include the other psychiatric diagnosis the Veteran has been given by medical professionals.

The Board finds that additional development is needed before it can address the claim on the merits; specifically, the Veteran is entitled to a VA examination.  The Veteran has been diagnosed with PTSD and major depressive disorder, which has been attributed by medical professionals to the Veteran's service.  Thus, of record is evidence of a current disability and evidence that it may be related to service.  The Board finds it has insufficient evidence to determine whether the Veteran's alleged in-service stressors actually occurred.

In a 1996 VA treatment record, it shows the Veteran reported he had been treated at the McGuire VAMC in Richmond, Virginia, in 1994.  Such records are not in the claims file and an attempt to obtain them should be made.  Lastly, the most recent VA treatment records in the claims file are from March 2012.  The records since that time should be associated with the claims file.

Accordingly, the case is REMANDED for the following action:

1.  Obtain the 1994 VA treatment records from McGuire VA Medical Center in Richmond, Virginia, beginning in 1994.

2.  Obtain the VA treatment records since March 2012.

3.  After completion of the foregoing, schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any psychiatric disability diagnosed, to include PTSD.  The claims file must be reviewed in conjunction with the examination.  All testing deemed necessary must be conducted and results reported in detail.  The examiner is informed of the following facts:

* The documents cited below are tabbed on the left with the applicable month and year.  VA medical records are tabbed in yellow.  Statements from the Veteran are tabbed in orange.

* A July 1980 VA examination report shows that the examiner wrote, "None" when reporting whether there was any psychiatric or personality issues.  See report in Volume 1 at item # 43.

* The Veteran was hospitalized in March 1992 with cocaine and alcohol and cannabis dependence.  See summary report in Volume 1.  

* A June 1996 VA treatment record shows the Veteran denied a history of any major psychiatric problems, such as mood disorder or thought disorder.  The Veteran was undergoing treatment for drug dependence.  When completing Axes I-V, the examiner wrote, "None" as to psychosocial stressor.  When asked if there were other psychosocial and environmental problems, the examiner wrote, "None."  See Volume 2.

* A February 2001 VA treatment record shows the Veteran reported he had been depressed "ever since I got diagnosed with hepatitis C."  See Volume 1.

* An April 2001 VA treatment record shows the Veteran was diagnosed with major depressive disorder, single, and a personality disorder, not otherwise specified.  See Volume 1.  The Veteran has provided various stressors, which he claims has caused PTSD or an acquired psychiatric disorder.  

* Initially, when the Veteran first submitted his claim for service connection for PTSD in 2001, he claimed the following stressors (these are all listed on one document in Volume 1):

* In 1975 during basic training at Fort Jackson, South Carolina, there would be times when the drill sergeant would wake the squad up about three to four times a night for no reason and call the squad all kinds of names.

* In 1975 during basic training at Fort Jackson, South Carolina, while doing run exercises, if someone would be having trouble keeping up, they would leave them out in "no man's land" in the woods, which forced them to be the best company on post.

* In 1976 to 1977 at Fort Sill, Oklahoma, they were performing a night exercise with live rounds and there was a command to move the tanks to a new location, during which time they were sleeping no more than 10 feet from the tanks that were in "black-out drive."  The Veteran wrote he was lucky to get out of the way with the tanks in "black-out drive."

* In 1977 in Hanau, Germany, the Veteran got into a fight, which made him feel better.  He described feeling like he had been programmed and could not stop fighting until the task was completed, which meant until someone got hurt.  

* In 1978 in Hanau, Germany, the Veteran had an aggressive outburst towards the sergeant because the sergeant was doing this job of running communication lines and had told the Veteran that he was not running the lines to the switchboard correctly, and the sergeant accused the Veteran of not having any rank.

* An April 2002 VA treatment record shows that the Veteran added a stressor that there had been an exercise during service where everyone had live rounds and that a person had an outbreak and began shooting in the air.  The Veteran reported that "someone was injured."  He stated that this occurred at night, which caused the Veteran to have difficulty sleeping.  See Volume 2.  

* An August 2002 VA treatment record shows that the Veteran reported the unit had left a training exercise, which involved working with live ammunition.  He reported that when they came back to the barracks, they were supposed to have put up their weapons.  The Veteran stated that one guy came into the barracks and started shooting rounds off.  He related that everyone started running and that he was scared.  The Veteran related there were approximately 30 people in the barracks.  The examiner noted that the Veteran reported he thought some people were hurt but did not know because he kept running.  The examiner added, "[The Veteran] related that no one talked about this event and they never found out what happened to the fellow."  See Volume 2.

* The other stressor the Veteran reported was that he was in Germany, when his job was to set up communication between two tanks.  He reported they had to sleep close to the tanks and that they had gone to sleep.  However, one of the tanks pulled out and did a 360 and started moving and almost ran him over.  The Veteran reported the tank was moving at a high rate of speed toward him, and that because of this event, he did not trust people.  See Volume 2.

* In a VA Form 21-0781, Statement in Support of Claim for Service Connection for Post-Traumatic Stress Disorder (PTSD), received in February 2008, the Veteran reported that in 1975 at Fort Jackson, South Carolina, a guy in his platoon, whose name he did not know, went on a shooting rampage in his barracks and that they were told to keep quiet about the incident.  He stated no one was injured.  He also reported the incident with the tank, which he stated occurred in Germany in 1977.  See Volume 3.

* In a subsequent statement, received in May 2008, the Veteran wrote that the incident involving the shooting rampage occurred on November 10, 1975, at which time he was in C Company during basic training and that no one was killed or injured.  As to the incident involving the tank, that occurred in August 1977 in Hanau, Germany, at which time he was in the 2nd Battalion.  See Volume 3.

* In a July 2008 Memorandum, the RO determined that the November 10, 1975, stressors described in the above bullet point could not be verified.  See Volume 3.

* While the Board has laid out some of the relevant facts, it asks that you review the claims file.  Additionally, the Board is seeking to obtain additional evidence, which may have been added to the file.


Based on the examination and review of the record, the examiner must indicate the following: 

(a)  the Veteran's current psychiatric diagnosis;  

(b)  whether it is at least as likely as not (50 percent or greater possibility) that any current psychiatric disability is related to active military service;   

(c)  if PTSD is specifically diagnosed, the examiner should specify the credible "stressors" that caused the disorder and the evidence upon which they relied to establish the existence of the stressors.  The examiner is instructed that only a specifically corroborated in-service stressful event may be considered for the purpose of determining whether exposure to such an in-service event has resulted in PTSD.  If a diagnosis of PTSD is deemed appropriate, the examiner should also comment upon the link between the current symptomatology and the Veteran's verified stressor(s).  The examiner should offer a rationale for any conclusion reached.  

4.  After the requested examination report has been completed, it should be reviewed to ensure that it is in complete compliance with the directives of this remand.  The examination report should be returned to the examiner if deficient in any manner.

5.  Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted, and re-adjudicate the issue of entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder and PTSD.  If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



__________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs